40 Congressmen Call on Special Ops Commander to Dismiss Case Brought Against Navy SEALs over Alleged Punching of Terrorist

By Fred Lucas | December 13, 2009 | 10:46 PM EST

(CNSNews.com) - Forty members of Congress are calling on the military commander who ordered the court martial of three Navy SEALs over the alleged punching of a terrorist to dismiss the charges. 

The letter, circulated by Rep. Dan Burton (R-Ind.), was sent Thursday to Army Major Gen. Charles T. Cleveland, commander of Special Operation Command Central. Gen. Cleveland ordered the prosecution of the three SEALs.

“In our opinion, prosecutorial discretion should have been exercised,” the 40 congressmen said. “Failing that, we respectfully and strongly urge you to exercise your leadership authority, stop the impending court martial and exonerate these men.”

Earlier, 33 House Members had signed a letter to Defense Secretary Robert Gates asking him to intervene in the case. That letter had been circulated by Rep. Duncan Hunter (R-Calif.).  Military law experts told CNSNews.com, however, that the Defense secretary’s ability to intervene in a court martial could be limited. 

U.S. congressmen representing two of the SEALs’ home districts signed the letters.   Only Republican members signed the letters.

Rep. Bob Latta, who represents the Ohio's 5th Congressional District that includes Perrysburg, Ohio, signed both of the letters.  Perryburg is the hometown of one of the three SEALs, 24-year-old Petty Officer Second Class Mathew McCabe. 

McCabe was part of the SEAL team that captured Ahmed Hashim Abed, the alleged architect of the murder of four Blackwater USA security guards in Fallujah, Iraq in 2004. The bodies of the four Americans were mutilated, burned and hanged from a bridge over the Euphrates River. 

McCabe has been charged with assault for allegedly punching Abed in the midsection. He has also been charged with dereliction of duty for allegedly failing to protect Abed and with allegedly making a false statement by denying the incident. Two other SEALs, Petty Officer Julio Huertas, 28, and Petty Officer Jonathon Keefe, 25, have been charged with alleged dereliction of duty for not protecting Abed and for allegedly making a false statement.  Huertas has also been charged with allegedly impeding an investigation. 

Rep. Latta will have more to say on the matter in the near future, his spokesman Bob Popp told CNSNews.com Friday. 

Keefe is from Yorktown, Va., part of the state’s 1st Congressional District represented by Rep. Rob Wittman, who signed Rep. Hunter’s letter to Gates. 

“After hearing the case of these three Navy SEALs, one of which is a constituent of mine, I and many of my colleagues were concerned with the message this would send to our soldiers, sailors, Marines, and airmen who serve in harms way every day,” Wittman told CNSNews.com in a statement. 

“These service members often risk their lives in dangerous and uncertain situations, and in this case, they captured one of the most wanted terrorists in Iraq. I am eagerly awaiting the secretary of defense’s response to the letter I signed in defense of these SEALs,” Wittman continued. “While I do not believe that the prosecution of these men is warranted, I do have full faith and confidence that the military justice system will bring all the facts to light.”

Huertas is from Blue Island, Ill., part of that state’s 1st Congressional District, which is represented by Rep. Bobby Rush, a Democrat. Rush did not sign either of the letters. Rush’s spokeswoman Sharon Jenkins told CNSNews.com that he will not be making a statement on the matter now, but “will continue to monitor the legal proceedings.”

The Burton letter said the SEALs should have been hailed as heroes instead of being vilified for allegedly assaulting Abed, who was in custody during the alleged Sept. 1 incident. 

“Al Qaeda’s own handbook instructs their operatives to allege detainee abuse if detained by American forces,” Burton’s letter says. “We’ve seen repeated cases of this since the conflicts in Iraq and Afghanistan began.”

“General, surely you agree that we are in a war that we must win,” says the Burton letter. “Our military personnel are putting their lives on the line every day trying to track down terrorists who want to indiscriminately kill Americans. Our troops and our SEALs need to be bold and decisive in combat; not looking over their shoulder fearing legal jeopardy for every action or gesture.”

The letter from the congressmen to Gen. Cleveland may have more chance of succeeding than the letter from the congressmen to Defense Secretary Gates. 

Under the Uniform Code of Military Justice, it is the “convening authority” who has the power to take action in a court martial. In this case, that is Gen. Cleveland. While Gates technically may have the authority to get involved, the exercise of that authority is complicated by a military court rule called “unlawful command influence.” The rule says that no high ranking commander--such as Secretary Gates--may interfere with a court martial or military tribunal conducted by a lower level commander--such as Gen. Cleveland--regarding “functions of the court-martial or tribunal or such persons in the conduct of the proceedings.”